Enforcement of Swiss Court's Judgment Against Former NHL Player Raises Lots of Interesting Legal Questions

Last week, a federal judge in Grand Rapids, Michigan upheld a $1.6 million judgment against former Detroit Red Wings forward Kevin Miller, who checked Canadian national Andrew McKim in the back causing him to fall forward and strike his head on the ice which resulted in a concussion and other injuries.  The incident occurred during a Swiss league game back in 2000.  Miller was also charged and convicted of simple bodily harm, intentional bodily harm and gross negligence in Switzerland's Canton of Zurich in 2004.


In 2010, a Swiss insurance company obtained a $1.1 million judgment against Miller in a Swiss court.  Miller has since refused to pay the Swiss court's judgment, and, as a result, the judgment increased to $1.6 million with interest and costs.  Miller had filed a lawsuit against a different Switzerland-based insurance company that represented his team, the AXA Winterthur Insurance Company, claiming that the insurer agreed to pay the judgment pursuant to a 2005 document from the company in which it expressly acknowledged: “It is hereby formally confirmed that Winterthur is responsible for the financial consequences of all judgments and costs arising out of … the criminal proceedings and … any civil proceedings relating to Mr. Andrew McKim’s direct claim against Mr. Kevin Miller based on the accident of 31st October 2000.”  Miller sued Winterthur in state court and the company had the case removed to federal court.


Unfortunately for Miller, he was dealt two legal blows.  In his case against Winterthur, Chief U.S. District Judge Paul Maloney, who presides in Kalamazoo, ruled that the U.S. court had no jurisdiction over Winterthur.  The Court of Appeals upheld that ruling, stating:  “The burden on Winterthur would be heavy, as it has no presence in Michigan, and it would be forced to litigate a contract case created under Swiss law in the United States court system.”  The second blow came last week from Judge Gordon Quist in Grand Rapids who ruled that his court was bound by the Uniform Foreign-Country Judgments Recognition Act and he enforced the $1.6 million Swiss court judgment against Miller.


The timing of the enforcement of this judgment is somewhat interesting because Steve Moore's case against Red Wings forward Todd Bertuzzi and the Vancouver Canucks is scheduled for trial in Toronto on September 8.  Moore is suing Bertuzzi and the Canucks for $38 million arising from the highly controversial career-ending hit that Bertuzzi laid on Moore in 2004, when Bertuzzi played for the Canucks, which left Moore with a concussion and three fractured vertebrae.  Bertuzzi also faced criminal charges and he pleaded guilty to assault causing bodily harm.  In 2006, he was sentenced to a year of probation and eighty hours of community service.


Indeed, a lengthy law review article could be written about all of the legal issues presented by these two cases.  Aside from the jurisdictional, international, criminal, and insurance/contract questions raised, there are also issues concerning foreign civil standards for liability of one sporting participant to another.  Athletes sued by co-participants in other countries may not receive the equivalent benefit of the U.S. civil liability standard, which is predicated on reckless disregard for safety and often poses a difficult burden for plaintiffs to overcome, and U.S. courts are often quick to pull the "assumption of risk" trigger.  And last but not least, these cases involve plaintiffs having to prove damages for lost earning capacity as professional athletes, a topic that I have personally found to be very interesting and rather complex.